As I noted last week, there has been talk that President Obama might need to resort to a recess appointment if he ever wants to fill the position at the head of the new Consumer Financial Protection Bureau with Richard Cordray, and that since the Republicans might seek to keep the Senate in pro-forma session forever (something that the Democrats, by the way, also did during the Bush Administration), Obama might have to copy Teddy Roosevelt, who appointed a number of officers in what he called the “constructive” recess between the two sessions of Congress, a recess that lasted exactly zero seconds. Today, there’s more discussion of this option at The New Republic’s website. In light of this brewing odd clauses controversy, I thought I’d relate the editorial that the New York Times ran on December 8, 1903, right after TR made his controversial move. The short piece is called “The Infinitesimal Recess”:

The fact that Secretary Root has advised the President that he may make the nominations of Gen. Wood and the rest of the army officers in the inappreciable space of time assigned to exist between the end of the extra session and the beginning of the regular session, disposes one to await the reasoning by which such advice is sustained before condemning it. But on the face of the provisions of the Constitution it appears preposterous.

The Constitution says that Congress “shall meet at least once in every year.” That is the regular session. The President may “on extraordinary occasions convene both houses, or either of them.” That is the kind of session that began on the 9th of November. “Neither house during the session of Congress shall, without the consent of the other, adjourn for more than three days.” No such agreed adjournment was had, though it was eagerly sought by the Senate, and the extraordinary session expired because of the beginning of the regular session. The Senate sought an adjournment expressly to secure a recess in which nominations might be made, which under the Constitution, would “expire at the end of their next session.” They did not get the adjournment, and it is not easy to see how they got the recess. Undoubtedly the situation created by the failure of the Senate either to get an adjournment or to do its business is embarrassing, but it does not seem half so embarrassing as the assumption by the President that Congress is not in session when actually it is. The probability is that Mr. Root interprets Article II, Section 2, Paragraph 3, of the Constitution as referring to a recess of the Senate only; but there was no recess, even of the Senate alone, in the sense that the term is ordinarily used.

Here at Odd Clauses Watch, I promise that me and my crack staff will be keeping a sharp eye out for all developments on this ongoing story.

With Republicans promising to filibuster the confirmation vote of Richard Cordray to head the newly-formed CFPB, speculation is rising about whether Obama might use the holiday recess to appoint him without Senate confirmation. Republicans might try to keep the Senate in at least pro-forma session to prevent such a move, but with the first session of Congress coming to an official close this winter, Obama might make a claim like Teddy Roosevelt did in 1903 that there has to be a “constructive” split-second recess in between the two sessions of Congress during which he can make a recess appointment. More about this historical event in Chapter Three of The Odd Clausesand about how the issue might resurface soon here, in this piece on Daily Kos.

More on this developing story here in Huff Po and in the Nation. Looks like we might have a big odd clauses controversy coming up in the next month!